Green Building Law Blog

When Good Regulations Go Bad

I have discussed many issues related to regulating green here at GBLB (for the Regulating Green best practices series, go here).  Some communities seeking to regulate green building, clearly with the best of intentions, have gone astray.  The most vivid examples of this were the Las Vegas green tax credit which threatened to bankrupt Nevada and the Albuquerque regulation which the City Solicitor failed to analyze for federal preemption issues.  But small communities are not immune from regulatory snafus: 

Recently, I came across a density bonus regulation for Madison, New Jersey.  The regulation reads as follows (emphasis mine): 

Maximum dwelling units per acre: 12 units per acre base density, with bonuses as follows:

(a) Incorporation of green building/design techniques to achieve at least a Silver level LEED-certified project: bonus of 10% over base density. (NOTE: The applicant shall demonstrate the ability to achieve this standard prior to receiving preliminary approval and shall commit to providing those systems, site improvements and design features consistent with Silver LEED certification.)

This regulation would be acceptable if the word "qualify" were substituted for "achieve."  There is simply no way for an applicant to demonstrate their ability to achieve a certification which is in the hands of a third party agency at the outset of the project.  Moreover, what design professional would be able to provide this type of guarantee? 

The Madison, NJ example demonstrates the importance of a good understanding of the LEED system (or other certification system) before utilizing it in regulatory drafting.  Design professionals need to be aware of the obligations they are assuming when a project seeks to comply with local regulations.  Finally, project owners need to ensure that they can comply with the local regulations, or seek legally binding representations by the government entity ensuring that their efforts to comply are sufficient. 

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Comments (4) Read through and enter the discussion with the form at the end
Rebecca - November 10, 2009 4:03 PM

I think the title of this blog is misleading. I was expecting an examble of a failed project resulting from a bad regulation.

Rich Cartlidge - November 10, 2009 6:48 PM

Excellent post! I raised a similar issue today on Del Percio's blog when I questioned whether local and state governments were passing green building legislation without a proper understanding of the issues. The example you focus on here is a prime example, while well intentioned it cannot be achieved.

William A. Kennedy-las Vegas Lawyer - November 10, 2009 9:43 PM

i don't think there is a need to substitute the word "qualify" with the word "achieve" because an applicant merely needs to demonstrate his ability to achieve said level of standard, not achieve said standard. Asking the applicant to achieve said standard is asking too much but asking the applicant to demonstrate his ability to achieve said standard is reasonable

Disability Insurance - December 11, 2009 12:51 AM

I agree that there is some ambiguity in this regulation. I wonder how many builders and/or residents have gotten around this wording to meet the regulations.

Shari Shapiro, Esq., LEED AP
Suite 300, Liberty View, 457 Haddonfield Road, P.O. Box 5459
Cherry Hill, NJ 08002-2220,